Derek O'Brien

CARICOM: Regional Integration in a Post‐Colonial World

This article argues that the distinctive form of economic integration within the Commonwealth Caribbean can best be understood if account is taken of the imprint of colonial rule both upon relations between these former colonies and upon the political consciousness of the regions leaders. The legacy of colonial rule, including the abortive attempt at a West Indies Federation, resulted not only in a profound mistrust of any form of political union but also established the ideal of island self‐government as the centre of the regions political culture. This is clearly manifest in the institutional structure and governance of the Caribbean Community and Common Market (CARICOM), which is based on the principles of intergovernmentalism. Notwithstanding some recent changes to that institutional structure, such as the introduction of the Caribbean Court of Justice, Member States remain firmly committed to the pursuit of regional integration through cooperation and association without any transfer of their sovereign decision‐making powers. It will be argued, however, that this will not only make it increasingly difficult to achieve the economic objectives of CARICOM, but will also make it increasingly difficult to maintain the fragile sense of regional unity, originally forged in the crucible of colonial rule, in a post‐colonial world as new alliances both within and without the region begin to emerge.

The Caribbean Court of Justice and Legal Integration within CARICOM: Some Lessons from the European Community

CARICOM, established under the Treaty of Chaguaramas, in 1973, has since its inception suffered from the repeated failure of member states to implement at the national level decisions taken by the Heads of Government at the regional level. The Caribbean Court of Justice (CCJ,) which has been vested with a compulsory and exclusive jurisdiction to interpret and apply the Revised Treaty of Chaguaramas, is intended to bridge this implementation gap. This has aroused expectations that the CCJ will play a role similar to that played by the ECJ in promoting legal integration. However, it is important to recognise that the ECJ has functioned within a particular jurisdictional framework and has benefited from the contribution of a diverse range of actors within the wider European legal community. It cannot, therefore, be assumed that the CCJ will be able to replicate the role played by the ECJ. The aim of this article is, accordingly, to review the jurisdictional framework within which the CCJ will function; to explore how this is likely to affect its relationship with the wider legal community within CARICOM; and, finally, to consider how this will impact upon legal integration within the region generally.

Chant down Babylon: Freedom of Religion and the Rastafarian Challenge to Majoritarianism

‘ … to a very large extent power consists in the ability to make others inhabit your story of their reality.’ The accommodation afforded to religious differences within the legal systems of the common law world is as much a political as a legal concern. As such it is part of a much wider debate about the nature of democratic government within a pluralist society. The concern is that in so far as democracy is dominated by a majoritarian concept it may not be compatible with pluralism. Majoritarianism is predicated on the assumption that the will of the majority is absolute and is the final authority when defining the limits of individual rights and freedoms and how they are best respected and enforced. A pluralist conception of society, by contrast, requires that the rights of minorities must, on occasion, be allowed to take precedence over the wishes of the majority in order to encourage diversity, whether religious, racial or sexual, to flourish. The challenge for modern democracies is, therefore, to reconcile the demands imposed by majoritarianism within a pluralist framework.

CARICOM and its Court of Justice

The Caribbean Court of Justice, which was inaugurated in April 2005, is possessed of both an appellate and an original jurisdiction. In its original jurisdiction the Court is vested with a compulsory and exclusive power to interpret and apply the Revised Treaty of Chaguaramas which establishes the Caribbean Community (CARICOM) Single Market and Economy. This paper explores the Courts original jurisdiction and the role that it could play in promoting regional integration, taking account of the regions history and the institutional structure within which it will be expected to function.

The Right to Free Legal Representation in the Commonwealth Caribbean

In the region of the Commonwealth Caribbean the provision of legal aid to those charged with serious criminal offences is by no means automatic, even among those countries with purportedly comprehensive statutory legal aid schemes. The legal aid landscape of the region may be about to change, however, as a result of the recent decision of the Privy Council in Hinds v A-G of Barbados,1 on appeal from the Court of Appeal of Barbados. In this case the Board held that the right to a fair hearing, which is guaranteed by section 18(1) of the Constitution of Barbados 1966, requires that in certain circumstances a defendant who is charged with a criminal offence must be afforded free legal representation. This is the first time that a right to free legal representation has received constitutional recognition within the Commonwealth Caribbean and Hinds v A-G is thus, potentially at least, a very important decision. There is a growing body of evidence from a number of other jurisdictions that judicial recognition of a fundamental right to free legal representation can have a profound impact on the provision of legal aid,2 and can even galvanize governments into establishing publicly funded legal aid schemes in countries where no such scheme previously existed.3 This article sets out to evaluate the significance of the decision in Hinds v A-G and to consider its potential impact on the provision of legal aid both in Barbados and the region as a whole. The first section sets the context for the discussion which follows by describing the current provision of legal aid in the region to those accused of serious criminal   Oxford University Commonwealth Law Journal 197

David S Berry, Caribbean integration Law (OUP 2014)

According to this book’s introduction, the Caribbean ‘hosts two of the most successful and long-standing regional integration movements in the developing world: the Caribbean Community (CAriCOM) and the Organisation of eastern Caribbean States (OeCS).1 Though there are many who would challenge the description of these organisations as successful,2 they are, indisputably, longstanding. CAriCOM was first established, in 1973, by the Treaty of Chaguaramas. This was significantly revised, in 2006, to provide for the introduction of the Caribbean Single Market and economy (CSMe), and will, henceforth, be referred to as the revised Treaty of Chaguaramas (rTC).3 The OeCS is, arguably, even older: the eastern Caribbean Common Market having been established in 1968, and subsequently transformed into the OeCS in 1981, under the Treaty of Basseterre. This too was revised to provide for the introduction of the eastern Caribbean economic Union in 2010 and will, henceforth, be referred to as the revised Treaty of Basseterre (rTB).4 Though it might, at first, seem strange to have two organisations committed to regional integration in one geographical area, sharing similar goals and overlapping in membership, as the author explains, the two organisations diverge in a number of important ways that reflect the different needs of their members.5 Hence, the author has subjected them to a separate as well as a comparative analysis.

When is an Identification Parade Mandatory?: R v Forbes

Paragraph D 2.3 of the Codes of Practice to the Police and Criminal Evidence Act 1984 provides: ‘Whenever a suspect disputes an identification, an identification parade shall be held if the suspect consents unless paragraphs 2.4 (officer considers that it would not be practicable) or 2.7 (group identifications) or 2.10 (video film identification) apply. A parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents.’ Paragraph D 2.17 provides: ‘A police officer may take a witness to a particular neighbourhood or place to see whether he can identify the person whom he said he saw on the relevant occasion.’

‘Don't Look Back’: The Exclusion of Evidence and the Constitutional Rights of the Accused. A Caribbean Commonwealth Perspective

A s has been well rehearsed by numerous commentators,* the difficulty in resolving this issue lies in balancing the competing interests of the state in securing the conviction of the guilty whilst continuing to protect the integrity of the criminal justice system and the rights of the individual. This ethical dilemma may be formulated a s follows. If a court excludes evidence which is relevant but has been obtained improperly the public may lose faith in the effectiveness of the judicial system and feel that the court has betrayed its duty to protect the community from crime. On the other hand, if the courts are seen always to admit evidence regardless of the illegality of its origins the courts will be seen effectively a s endorsing police ma lp ra~ t i ce .~ One way out of this moral maze has been suggested by Professor Andrew Ashworth who, some 20 years ago, argued the case for the adoption of the ‘protective’ principle a s the proper guide for judges in exercising their discretion whether or not to exclude evidence. According to the protective principle, wherever an individual’s rights have been infringed there exists a ‘prima facie justification for the